(HC) Hall v. State of California ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDREW HOWARD HALL, No. 2:22-cv-1722 DJC CKD P 12 Petitioner, 13 v. ORDER 14 STATE OF CALIFORNIA, et al., 15 Defendants. 16 17 Petitioner is a California prisoner proceeding with a petition for writ of habeas corpus 18 under 28 U.S.C. § 2254. The operative petition is the first amended petition filed February 14, 19 2023. Petitioner presents three grounds for relief. 20 Respondent has filed a motion to dismiss for failure to exhaust state court remedies as to 21 ground 3, in which petitioner asserts his trial counsel rendered ineffective assistance of counsel in 22 violation of the Sixth Amendment by not asserting double jeopardy. 23 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 24 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement 25 by providing the highest state court with a full and fair opportunity to consider all claims before 26 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971). The United 27 States Supreme Court has held that a federal district court may not entertain a petition for habeas 28 ///// 1 corpus unless the petitioner has exhausted state remedies with respect to each of the claims raised. 2 Rose v. Lundy, 455 U.S. 509 (1982). 3 A review of the record reveals petitioner has not presented claim in ground 3 to the 4 California Supreme Court. Therefore, the amended petition is mixed, containing both exhausted 5 and unexhausted claims, and petitioner cannot proceed. 6 Petitioner has three options. First, he may file a second amended petition omitting any 7 claims about which he has not exhausted state court remedies and this court will proceed on that 8 petition. Second, he may seek a stay under Rhines v. Weber, 544 U.S. 269 (2005) while he 9 exhausts state court remedies. In order to obtain a stay under Rhines, petitioner must show (1) 10 good cause for his failure to previously exhaust state court remedies, and (2) any unexhausted 11 claim is potentially meritorious. Rhines v. Weber, 544 U.S. at 278. Third, petitioner may file a 12 second amended petition omitting any unexhausted claims and request a stay of the petition 13 pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002) until state court remedies have been 14 exhausted as to all claims. 15 Petitioner is cautioned that if he chooses to proceed now on a second amended petition 16 raising only exhausted claims he will risk forfeiting consideration of the unexhausted claims in 17 this or any other federal court. See McCleskey v. Zant, 499 U.S. 467 (1991); see also Rose, 455 18 U.S. at 520-21; Rule 9(b), Rules Governing Section 2254 Cases. 19 Petitioner is further cautioned that the habeas corpus statute imposes a one-year 20 limitations period for filing non-capital habeas corpus petitions in federal court. In most cases, 21 the one-year period will start to run on the date the state court judgment became final by the 22 conclusion of direct review or the expiration of time for seeking direct review, although the 23 statute of limitations is tolled while a properly filed application for state post-conviction or other 24 collateral review is pending. 28 U.S.C. § 2244(d). 25 Accordingly, IT IS HEREBY ORDERED that: 26 1. Respondent’s motion to dismiss (ECF No. 12) is denied as moot. Respondent need 27 take no further action in this case without further instruction from the court. 28 ///// 1 2. Petitioner is granted 30 days to proceed in one of the three manners described above. 2 | Petitioner’s failure to avail himself of any option within 30 days will result in a recommendation 3 || that his amended habeas petition be dismissed and this case be closed. 4 | Dated: October 12, 2023 Card ke Lg a 5 CAROLYN K DELANEY? 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 |] nallt722.mixed 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28